All “non-exempt” employees are entitled to legally protected work breaks. A non-exempt employee is typically a non-managerial level employee, an employee who performs a physical job, or any employee who earn less than $41,600 per year. In contrast, an “exempt” employee will typically work in management or will have specialized job or background. An employee may earn much more than $41,000 per year still be considered “non-exempt.”

Numerically, most employees are non-exempt and are entitled to take protected breaks. An employee’s “classification” as exempt or non-exempt is a very fact-intensive analysis that depends on what the employee spends the majority of his or her time doing.

Employers regularly misclassify their employees. Employers have a financial incentive to classify employees as “exempt” to avoid the obligation to provide legally required breaks and to avoid paying overtime. And many employers simply do not know how rigorous their obligations are under California law. For these reasons, many employees are not provided with rest and meal breaks when they should be.

What are protected rest and meal breaks?

There are three types of protected breaks in California: rest breaks, meal periods, and recovery periods.

Rest Breaks:

Rest breaks are the most common form of legally protected break. All non-exempt employees are entitled to one, paid 10-minute rest break for every four hours worked. Most importantly, the rest break must be “duty-free”. A duty-free rest break means that the employee is not doing any work for the employer.

Meal Periods and Lunch Breaks:

Meal periods or lunch breaks are the next most common type break. One unpaid, half-hour meal period must be provided for every five hours worked. Like rest breaks, the employee must be given a realistic and meaningful opportunity to take a “duty-free” meal period. This means that employees must be permitted to leave work and be completely free of any work obligations. Employees who are required to take their lunch break at their desk are not being provided with a duty-free meal period.

Recovery or Cooldown Periods:

California also requires employers to provide five minute recovery periods or “cooldown periods” or “shade breaks” to employees who work outside in high temperatures. The purpose of this type of break is to prevent heatstroke illness. Recovery periods are the least most common form of protected break because they only apply to employees who work outdoors and in the heat, such as construction workers, agricultural workers, and landscaping employees.

What happens if an employee is deprived of their breaks?

Employers owe their employees penalties if the employee is deprived of the opportunity to take legally protected breaks. One such penalty is called a meal or rest break premium—equivalent to one additional hour’s pay at the employee’s regular rate of pay for missed breaks, up to two hours per day. These penalties can add up to thousands of dollars, especially for employees who have been deprived of their breaks for a long period of time.

As an illustration, take the case of José the bartender. José works as a bartender at a popular bar in downtown Santa Cruz. José works five nights per week from 4:30 p.m. to 2:30 a.m. and is paid $15.00 per hour. José works with one other bartender, Mike. Mike and José are the only employees on site at the bar. The bar is very popular among UCSC students and patrons are lined up at the bar waiting to buy drinks all night long. José has been repeatedly told by the bar’s owner, Jared, under no circumstance should any patron wait longer than 5 minutes at the bar for a drink.

Given the bar owner’s instructions to José about customer wait times, the bar’s popularity, and the understaffing, Jose never has the opportunity to take a duty free break at work.Unfortunately, José is abruptly terminated after he presses the wrong button on the credit card machine, resulting in a loss of hundreds of dollars to the bar.

José does not have a case for wrongful termination. However, he does have a great case for failure to provide rest and meal breaks. Since José worked ten hours per shift, he should have received two duty-free half hour meal periods and two duty-free 10-minute rest breaks. José can get the maximum penalty of two hours additional pay for every day that he was deprived two or more breaks; $30.00 per day. That totals $7,800 per year going back up to four years, or $31,200.

After unpaid overtime, interest, and state penalties are factored in, José’s damages are in excess of $100,000.

Are you a Santa Cruz, Monterey, or Salinas employee who can’t get a break at work? Contact the Brian Mathias Law. Se habla español.